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Edwin Durand, An Individual; Madelaine Durand, An Individual v. Candice L. Stephenson

November 27, 2012

EDWIN DURAND, AN INDIVIDUAL; MADELAINE DURAND, AN INDIVIDUAL, PLAINTIFFS,
v.
CANDICE L. STEPHENSON, J. WAYNE STRAUCH, ET AL., DEFENDANTS.
AND RELATED CROSS-ACTION.



AMENDED PRETRIAL CONFERENCE ORDER

Pursuant to court order, a Pretrial Conference was held on November 16, 2012 before Judge John Mendez. Plaintiffs appeared In Pro Se; Glenn W. Peterson appeared as counsel for defendants. 2

After hearing, the Court issued its Pretrial Conference Order. Both parties submitted objections to this Order. After considering these objections, the Court makes the following findings and orders:

I. JURISDICTION/VENUE

Jurisdiction is predicated upon 28 U.S.C. § 1332, and has previously been found to be proper by order of this court, as has venue. Those orders are confirmed. 2

II. JURY/NON-JURY

Plaintiffs have demanded a jury trial. 4

III. STATEMENT TO BE READ TO JURY

Seven (7) days prior to trial the parties shall E-file a joint 6 statement of the case that may be read to the jury at the beginning 7 of jury selection. 8

IV. UNDISPUTED FACTS

The parties agree that the following facts are not in dispute, and they stipulate to these facts for purposes of trial.

1. Plaintiff Madelaine Durand is an individual who resides in Washoe County, Nevada.

2. Plaintiff Edwin Durand is an individual who resides in Washoe County, Nevada.

3. Defendant Candice L. Stephenson is an individual who resides in Placer County, California.

4. Defendant J. Wayne Strauch is an individual who resides in Marion County, Oregon and has extensive contacts within the State of California.

5. The subject Westinghouse Airbrake Company Articulated Loader model 1200 was located at 2024 Taylor Road, Roseville, California.

6. 2024 Taylor Road, Roseville, California is owned by Defendant J. Wayne Strauch.

7. On April 18, 2008 the Defendants J. Wayne Strauch and Candice Stephenson sold the subject Loader to Richard Van Tassel.

8. On April 18, 2008 Richard Van Tassel met Defendant Candice L. Stephenson at her home located at 111 Bonny Knoll Road, Roseville, California and gave her a check in the amount of 2 $6,000.00 made out to the Strauch Administrative Trust, the 3 purchase price of the Loader. 4

9. The copy of the check from Richard Van Tassel to the 5 Strauch Administrative Trust for $6,000 dated April 18, 2008 is 6 deemed authentic. 7

10. Defendant Stephenson told CHP Investigating Officer Bruce 8 Ogden that the Loader had been sold for $6,000. 9

11. Stephenson admitted having a conversation with Mr. Durand after the Loader was sold.

12. The Loader was moved off the property located at 2024 Taylor Road, Roseville, California in April 2008.

13. Defendant Strauch had a telephone conversation with Mr. Durand after the Loader was removed from 2024 Taylor Road, Roseville, California wherein Mr. Durand stated that he (Durand) owned the Loader.

14. Both Candice L. Stephenson and J. Wayne Strauch are Trustees on the Strauch Administrative Trust.

15. Before Marjorie Strauch died she was a Trustee on the Strauch Administrative Trust.

16. Marjorie Strauch died on June 26, 1999.

17. Both Defendants Candice L. Stephenson and J. Wayne Strauch are Marjorie Strauch's heirs.

18. Defendant Stephenson knew that her mother had sold the HD 41 dozer.

19. Defendant Stephenson's mother told her that she sold the HD 41 dozer to a Mr. Brown.

20. Defendant J. Wayne Strauch knew that the HD 41 dozer had been sold. 2

V. DISPUTED FACTUAL ISSUES

The parties agree that the following factual issues are 4 disputed: 5

1. Whether Durand owned the subject Loader at the time of 6 the alleged conversion? 7

2. Whether Durand had the right to possession of the subject 8 Loader at the time of the alleged conversion? 9

3. Whether the Defendants had the right to sell the Loader at the time of the alleged conversion?

4. Whether Durand had abandoned the Loader?

5. Whether Durand had a "For Sale" sign attached to the Loader?

6. The value of the Loader as of April 18, 2008, the time of the alleged conversion.

7. Whether the Durands are entitled to damages, and if so, the amount of such damages.

8. What was said, and by whom, during Stephenson's 2008 19 minute conversation with Mr. Durand.

9. Whether Mr. Durand had an oral agreement with Marjorie Strauch to store the Loader at no cost for an indefinite period of time on her property in Roseville.

10. Whether there is an original Bill of Sale between Francis Brown and Marjorie Strauch for the Loader, and, if so, what happened to this Bill of Sale?

11. What was said, and by whom, during Mr. Durand's telephone conversations with Marjorie Strauch on January 19, 1996, January 27, 1996 (two conversations), July 24, 2008, July 28, 2008, and July 29, 2008. 2

VI. DISPUTED EVIDENTIARY ISSUES

1. Durand anticipates hearsay objections to statements by 4 Richard Van Tassel that the Defendants told him they knew the 5 Loader had been sold but could not find the owner. 6

2. Should the Defendants include Mr. Rick Churches as a 7 witness, Durand anticipates filing a motion in limine. 8

3. Strauch's statement that he knew his mother had sold the 9 Loader is admitted pursuant to F.R.C.P. Rule 36(a)(3), but the statement is not admissible on grounds that it is confusing and incomplete.

4. Strauch's statement that he told Durand that the persons who had stolen his pumpkin patch equipment must have stolen the Loader is admitted pursuant to F.R.C.P. Rule 36(a)(3).

5. Defendants contend that item 2 may be resolved by a motion in limine. Defendants also anticipate challenging the admissibility of various documents proffered by plaintiffs. The objections will, in some instances, depend upon the purpose(s) for which plaintiffs offer the document(s).

6. Plaintiffs anticipate challenging the admissibility of various documents proffered by Defendants. Plaintiffs also anticipate filing several motions in limine including motions seeking to: (a) exclude Defendants' witnesses on various grounds; (b) exclude some of Defendants' affirmative defenses; (c) exclude Mr. Churches as a non-retained expert; and (d) exclude any evidence or argument by Defendants concerning the amount of the sale of the dozer to Mr. Churches.

VII. RELIEF SOUGHT

Durands seek money damages between $120,000 to $250,000, a 3 fair compensation for the time and money properly expended in 4 pursuit of the property, interest from the time of conversion and 5 all costs allowed by law. 6

Defendants, by counterclaim, seek a declaratory judgment 7 herein, quieting title to the subject personally, i.e., a decree 8 that ownership of the Loader was never transferred to Plaintiffs, 9 either by operation of law or by agreement, because, among other things, Plaintiffs failed to complete performance of the agreement, i.e., by taking possession of the Loader and removing it from the vacant field owned by Marjorie Strauch. Accordingly, Defendants seek a declaratory judgment that Plaintiffs' recourse herein is limited as a matter of law and equity to return of the money deposited with the deceased Marjorie Strauch.

VIII. POINTS OF LAW

Trial briefs shall be E-filed with the court no later than seven (7) days prior to the date of trial, i.e., January 7, 2013. Any points of law not previously argued to the Court should be briefed in the trial briefs.

IX. ABANDONED ISSUES

The Durands' contend that their Complaint requesting damages in the amount of $600,000 was abandoned back in 2009 and that they are proceeding on the appraised valuation of their expert witness.

Defendants dispute any attempt to abandon the Noble Murray Appraisal and/or the damage claim in the amount of $600,000. Defendants intend to offer this appraisal, and Plaintiffs' representations to this Court that accompanied it, for multiple purposes under Rules 403-404, 607-609, and 613 under the Federal 2

Rules of Evidence. Among other things, these statements are 3 appropriately offered to the trier of fact for impeachment 4 purposes, and/or to negate Plaintiffs' credibility as witnesses at 5 trial. 6

X. WITNESSES

Plaintiffs anticipate calling the following ...


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